Berford v. New York Iron Mine

57 Jones & S. 404, 29 N.Y. St. Rep. 207

Opinion

By the Court.—Freedman, J.

The judgment on the demurrer which is still in force, determined that the facts set forth in the complaint and existing at that time, constitute no ' cause of action against the defendant. That being so, the plaintiff will not be permitted to file and serve a supplemental complaint setting up facts which did not exist at the time of the commencement of the action. Farmers’ Loan and Trust Co. v. United Lines Tel. Co., 47 Hun, 315.

Neither by amendment of the original complaint nor by supplemental complaint can facts which occurred after suit brought, be made a part of plaintiff’s case so as to turn what is no cause of action at all, into a good cause of action. McCullough v. Colby, 4 Bosw. 603; Muller v. Earle, 37 N. Y. Super. Ct. 388.

The cause of action now sought to be maintained by means of a change of the original complaint, only arose when the dividends were declared, and such declaration occurred long after the commencement of the action. The fact that the declaration, at the time it was made, is alleged to have been made “ nunc pro tunc as of the years 1877 to 1882,” can make no difference.

The reason already given being decisive, it is unnecessary to discuss any other question.

The order should be affirmed with ten dollars costs and disbursements.

Sedgwick, Oh.. J., concurred.